1989 (8) TMI 85 - HC - Central Excise

Summary

Issues:
1. Constitutionality of Section 77 of the Gold Control Act, 1968 in relation to Article 20(2) of the Constitution of India.

Analysis:
The petitioners in this case faced prosecutions for offenses under Section 85(1) of the Gold Control Act, 1968. They had already been subject to proceedings under Sections 71 and 74 of the Act for confiscation and penalty related to seized gold articles. The Collector of Central Excise had passed orders in these proceedings. The petitioners filed Original Petitions seeking a declaration that Section 77 of the Act is unconstitutional and requested the quashing of the ongoing prosecution proceedings based on Article 20(2) of the Constitution of India.

The main contention revolved around whether the proceedings under Sections 71 and 74 amounted to prosecution and punishment, thus barring the petitioners from facing a second prosecution. It was argued that these sections only dealt with confiscation and penalty, not prosecution for offenses. The Act distinguished between confiscation/penalty proceedings and prosecution proceedings in a Criminal Court. The imposition of penalty did not amount to punishment for an offense under the Code of Criminal Procedure, as it was an administrative process separate from prosecution.

The Supreme Court's decisions in various cases, including Maqbool Hussain v. State of Bombay and Asstt. Customs Collector, Bombay v. L.R. Molwani, were cited to support the argument that confiscation and penalty proceedings under similar Acts were not considered prosecution proceedings under Article 20(2) of the Constitution. The addition of a judicial member to the Appellate Tribunal did not transform the nature of the proceedings into judicial or prosecution proceedings. The Appellate Tribunal's decisions did not result in convictions or acquittals, thus not constituting punishment.

Ultimately, the court rejected the petitioner's contention that Section 77 of the Act was unconstitutional. The court emphasized that the addition of a judicial member to the appellate body did not change the nature of the proceedings or the validity of Section 77. The court held that even without Section 77, prosecution proceedings could be initiated despite ongoing or concluded proceedings under Sections 71 and 74 of the Act. Therefore, the Original Petitions were dismissed, and the court issued a carbon copy on usual terms.